DOJ vs. Facebook

Recently, the DOJ has filed a lawsuit against Facebook over its PERM program. At its core, the complaint alleges that Facebook did not advertise as effectively or recruit as aggressively for its positions associated with PERM applications as it did for other openings. An excerpt from the press release is telling: “In its investigation, the department determined that Facebook’s ineffective recruitment methods dissuaded U.S. workers from applying to its PERM positions. The department concluded that, during the relevant period, Facebook received zero or one U.S. worker applicants for 99.7 percent of its PERM positions, while comparable positions at Facebook that were advertised on its careers website during a similar time period typically attracted 100 or more applicants each.” It is interesting that the DOJ has not alleged that Facebook failed to follow the DOL guidelines relative to recruitment activities but, is claiming that the recruitment activities expressly permitted by the DOL are ineffective. In this respect, I think we would all agree; the notion that a Sunday newspaper classified section is an effective place to recruit for professional jobs in 2020 is ridiculous. How, the DOJ can make the leap that the failure of the DOL to update its regulations would be the fault of the employer fastidiously following those regs is a stretch at best and an abuse of power at worse. Updating the PERM program to use data and modern recruitment techniques is the answer, not this lawsuit.

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